COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60738, 60739 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM VANDERSOMMEN : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JULY 23, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-203,690 and CR-205,715 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES Hyman Friedman, Esq. Cuyahoga County Prosecutor Cuyahoga County Public Defender The Justice Center By: Betty T. Harvey, Esq. 1200 Ontario Street The Marion Building, Rm. 307 Cleveland, OH 44113 1276 West Third Street Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant William Vandersommen ("appellant") appeals from his pleas of guilty in an amended indictment to one count of burglary (R.C. 2911.12) and one count of theft (R.C. 2913.02) in lower court case number 203,690 (Case I). Appellant also appeals from his pleas of guilty in lower court case number 205,715 (Case II) to two counts of aggravated robbery each with a gun specification. The date of the offenses in Case I was August 18, 1985 and in Case II, January 8, 1986. Appellant was sentenced in Case I to three to fifteen years on count one, one- half year on count two, to run concurrently with each other and with the sentence imposed in Case II, to wit: five to twenty- five years each on counts one and two with two three year terms of actual incarceration for the gun specifications, to run consecutively with each other. A transcript of proceedings is not available due to a fire in the Justice Center on December 27, 1988 which destroyed the court reporter's stenographic notes. According to appellant, he compiled an App. R. 9(C) statement. However, the record is notably absent this document. Thereafter, the state filed its objections to appellant's App. R. 9(C) statement. Pursuant to App. R. 9(E), the trial court was to settle and approve a statement of the evidence as the two versions were conflicting. Instead, the trial court did not settle the differences but filed a document which stated the - 3 - court lacked the knowledge of this proceeding to settle and approve such a statement as he was not the judge who accepted the pleas. The judge who did accept the guilty pleas was not available. The cases have been consolidated for purposes of appeal. On appeal, appellant challenges the trial court's acceptance of his guilty pleas and also asserts that he was denied the effective assistance of appellate counsel. I. In particular, appellant asserts his guilty pleas were not knowingly, intelligently and freely made. Appellant argues the trial court failed to inform him of the possibility of consecutive versus concurrent terms of imprisonment. Appellant claims that had he known of the possibility of consecutive sentences, he would not have plead guilty. Moreover, appellant argues this court must vacate his pleas as an adequate record of the proceedings is unavailable. Crim. R. 11(C) provides in relevant part: (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. - 4 - (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. In State v. Johnson (1988), 40 Ohio St. 3d 130, syllabus, the Ohio Supreme Court held: Failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of Crim. R. 11(C)(2), and does not render the plea involuntary. Although the trial judge failed to settle the differences in the App. R. 9 statements, appellant's underlying contention is nonetheless without merit. Appellant essentially argues he is entitled to a vacation of his guilty pleas because he was apparently not informed of the possibility of consecutive versus concurrent terms of imprisonment. Even if the trial judge settled the statements of evidence and concluded this to be true, pursuant to State v. Johnson, supra, the trial court's failure to so inform appellant is not a violation of Crim. R. 11(C)(2). Accordingly, the first assignment of error is overruled. II. - 5 - Appellant also argues that appellate counsel's failure to furnish an adequate record of proceedings pursuant to App. R. 9(C) and the trial court's subsequent failure to settle the record denied him the effective assistance of counsel. In particular, appellant essentially reiterates his contentions in his first assignment of error and does not specifically argue the ineffective assistance of counsel. Even in the absence of an adequately settled record in this case, appellant's contention is meritless as the failure to inform appellant regarding the possibility of concurrent versus consecutive is not a violation of Crim. R. 11(C). A settled record would not have made a difference in the outcome on appeal in this case. Accordingly, the second assignment of error is overruled. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. KRUPANSKY, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .